THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44071/98
by Robert KERR
against the United Kingdom

            The European Court of Human Rights (Third Section) sitting on 7 December 1999 as a Chamber composed of

            Mr   J.-P. Costa, President,
            Sir   Nicolas Bratza,
            Mr   L. Loucaides,
            Mr   W. Fuhrmann ,
            Mr   K. Jungwiert,
            Mr   K. Traja,
            Mr   M. Ugrekhelidze, judges,

and      Mrs S. Dollé , Section Registrar;

            Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

            Having regard to the application introduced on 1 October 1998 by Robert Kerr against the United Kingdom and registered on 26 October 1998 under file no. 44071/98;

            Having regard to the report provided for in Rule 49 of the Rules of Court;

            Having deliberated;

            Decides as follows:

THE FACTS

The applicant is an Irish national, born in 1956 and living in Belfast , Northern Ireland .

He is represented before the Court by Ms Angela Ritchie, a solicitor practising in Belfast with the firm Madden and Finucane.

            The facts of the case, as submitted by the applicant, may be summarised as follows.

A.        Particular circumstances of the case

On 31 May 1979 the applicant was convicted at Belfast Crown Court of two murders and associated offences. The court sentenced him to two life sentences in respect of the murders and to determinate prison terms of twenty years for attempted murder and five years for membership of a proscribed organisation.

In September 1983 he escaped from prison. He was later recaptured and in April 1988 was convicted of forty offences in connection with his escape. He received sentences ranging from three to seven years’ imprisonment, which the court ordered should run consecutively with the determinate sentences but concurrently with the life sentence.

On 18 September 1995 the applicant was released on licence pursuant to the powers granted to the Secretary of State under section 23(1) of the Prison (Northern Ireland) Act 1953 (“the 1953 Act”). The applicant signed a document of release which contained the following note:

“A person serving a sentence of life imprisonment who is released on licence is liable under the provisions of section 23 of the Prison ( Northern Ireland ) Act 1953 to be recalled to prison at any time by order of the Secretary of State.”

On 7 November 1996 the applicant was arrested at his home. He was charged on 14 November 1996 with conspiracy to collect and record information likely to be useful to terrorists and the possession of such information, contrary to section 33 of the Northern Ireland (Emergency Provisions) Act 1996. He was remanded in custody.

On 21 November 1996 the Secretary of State made an order under section 23(2) of the 1953 Act revoking the applicant’s licence and recalling him to prison. In a letter dated 21 November 1996 the Prison Service informed the applicant that his licence had been revoked by the Secretary of State:

“… following careful consideration of all available information about your case, including the original offence for which you received two life sentences and information regarding the circumstances of your recent arrest and subsequent committal to prison on 14 November 1996 charged with terrorist-related offences. [The Secretary of State] has decided on grounds of risk and public interest that it would be inappropriate for you to retain your status as a life licensee.”

The applicant was also informed that he could make representations to the Secretary of State by way of petition. As was regular practice at the time, the applicant was not afforded the opportunity to make such representations before the licence was revoked; nor was he provided with any documents about the matters considered by the Secretary of State when deciding to make the order.

By petition dated 28 February 1997 addressed to the Secretary of State the applicant stated that he had not been found guilty of any offence and had not been given an opportunity to refute any allegation made against him. He requested an explanation for the revocation of his licence.

On 17 April 1997 the applicant’s solicitors wrote to the Secretary of State requesting detailed reasons as to why the licence had been revoked and “for further proposals now in place to review our client’s life licence.” In a further letter dated 22 April 1997 the applicant’s solicitors asked for particulars about the information on which the Secretary of State had acted and details of the “public interest” which formed a ground for his revocation. Although an acknowledgement was sent, it does not appear that a detailed reply was furnished before the applicant commenced judicial review proceedings on 9 May 1997 .

On 30 July 1997 the prosecution dropped the charges against the applicant. The matter of the revocation of the applicant’s licence was then referred back to the Secretary of State for reconsideration. In a letter dated 31 July 1997 the Prison Service informed the applicant that the charges against him had been withdrawn and that the Secretary of State would again consider his case “in the light of all information available.” The applicant was invited to make any written representations which he might wish the Secretary of State to consider before deciding on his suitability for release on life licence.

In a letter dated 5 August 1997 the applicant’s solicitors wrote to the Secretary of State in the following terms:

“Our client instructs us to request copies of all material upon which the Secretary of State will rely, in order to make effective representations in respect of his release. Our client instructs us that he will submit a petition as to why he should be released, however, we are instructed that any representations he can make at this stage will inevitably be limited in the absence of any knowledge of the concerns the Secretary of State may have in relation to our client’s release.”

The applicant submitted a petition dated 5 August 1997 to the Secretary of State, complaining of the procedure which had been adopted in the revocation of his licence and asking that the licence be reinstated as soon as possible. On 21 August 1997 the Secretary of State determined to release the applicant again on licence, and he was in fact released on that date.

By letter dated 18 August 1997 certain materials were disclosed to the applicant’s solicitors, including materials considered by the Secretary of State when revoking the licence on 21 November 1996, as well as materials considered by the Secretary of State in August 1997 before deciding to release the applicant. Certain documents or parts of documents were withheld from disclosure on the ground of public interest immunity.

On 9 May 1997 the applicant initiated judicial review proceedings to quash the decision of the Secretary of State to revoke his licence and to obtain a declaration that the revocation was unlawful. Following his release on licence on 21 August 1997 , the applicant amended his statement of claim in order to limit the relief sought to a declaration that the revocation was unlawful. He argued, inter alia, that he should have been given an opportunity to make representations before the licence was revoked and been provided with the reasons for its revocation.

On 1 April 1998 the Lord Chief Justice, Lord Carswell, gave judgment on the application. Having reviewed domestic case-law he concluded:

“It is now clear from the authorities that fairness requires as a general rule that (a) a prisoner whose licence is revoked must receive at some stage an opportunity to make representations about the revocation and (b) in order to do so effectively he must be made aware of the reasons for the revocation if he does not already know them… We do not consider, however, that it is possible to lay down general rules about the stage at which the opportunity to make representations must be afforded or about the extent of any exception to the obligation to give reasons based upon the protection of sources of information who might be put in danger. In our view these are matters in respect of which much may turn upon the circumstances of the individual case and it would not be useful to prescribe procedures in any greater degree of detail.

Nor can we say with sufficient precision on the facts before us whether the applicant was prejudiced in the present case by the procedure adopted to an extent sufficient to make that procedure unlawful. He had the opportunity immediately after his licence was revoked to make representations by petition, but did not avail himself of this until over two months had passed, and then only to complain that he had not been told why his licence had been revoked. Nor did he at any time make any representations about the substance of the case, the validity of the Secretary of State’s decision to revoke the licence and the grounds for doing so…”

The Lord Chief Justice stated with regard to the above that it would not be appropriate in the circumstances to make a declaration about the lawfulness of the revocation of the applicant’s licence.

According to the applicant, he did not apply for leave to appeal against the decision since it represented a correct statement of domestic law and any appeal would have had no reasonable prospects of success.

COMPLAINTS

The applicant complains under Articles 5, 6, 8, 13 and 14 of the Convention.

He submits as regards Article 5 that his deprivation of liberty did not come within any of the cases defined in Article 5 § 1 (a)-(f) and was not in accordance with a procedure prescribed by law. Furthermore, in breach of Article 5 § 2 of the Convention, he was not informed promptly or at all of the reasons for his continued detention. He also maintains that, in breach of Article 5 § 4, domestic law did not entitle him to take proceedings by which the lawfulness of his detention could be decided speedily or at all by a court. He submits in addition that he did not have an enforceable right to compensation in breach of Article 5 § 5.

Relying on Article 6 § 1 of the Convention, the applicant maintains that he was denied a fair hearing in respect of the revocation and continuance of his licence.

The applicant states that the facts of his case disclose a breach of his right to respect for his family life and his home as guaranteed under Article 8 of the Convention.

With reference to Article 14 of the Convention, he asserts that life prisoners in Northern Ireland are less favourably treated than their counterparts in the rest of the United Kingdom who enjoy basic procedural rights under section 39 of the Criminal Justice Act 1991. On that account the applicant claims to be the victim of discrimination.

The applicant contends that he has no effective remedy in respect of the breaches complained of and invokes Article 13 of the Convention in this connection.

THE LAW

1.         The applicant maintains that his detention following the revocation of his licence amounted to a breach of Article 5 of the Convention, which provides in relevant part:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court; ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. ...

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

The Court observes that the applicant received, inter alia, mandatory life sentences in 1979 following his conviction on murder charges. In 1995 he was released on licence, being subject to recall at any time in accordance with the terms of section 23(1) of the Prison ( Northern Ireland ) Act 1953. The Secretary of State revoked the licence on 21 November 1996 in the exercise of the discretion conferred on him by that Act. In the Court’s opinion, the applicant’s detention thereafter was based on the mandatory life sentences which continued to remain in force. Furthermore, and having regard to the fact that the applicant was arrested and charged on suspicion of involvement in terrorist offences, it cannot be argued that there was a break in the chain of causation between the objective of the original life sentence and the purpose of the recall (see the Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 27, § 51).

In Convention terms, the applicant was lawfully detained after conviction by a competent court within the meaning of Article 5 § 1 (a). His complaint to the contrary is therefore inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court further observes that in its Wynne v. the United Kingdom judgment of 18 July 1994 (Series A no. 294) the applicant in that case submitted that Article 5 § 4 of the Convention applied to mandatory life sentences in the same way as it applied to discretionary sentences. In support of his contention, Mr Wynne invoked the Court’s Thynne, Wilson and Gunnell v. the United Kingdom judgement of 25 October 1990 (Series A no. 190-A). The Court rejected that submission. In its view, the fact remained that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. The essential difference between the two types of life sentence led the Court to confirm that, as regards mandatory life sentences, the guarantee of Article 5 § 4 was satisfied by the original trial and conferred no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of a life licence (see the above-mentioned Wynne judgment, pp. 14-15, §§ 35-36).

For the above reason the Court is not required to pronounce on the adequacy of the review undertaken in the instant case. It finds that the applicant’s complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The applicant further avers that, although arrested on suspicion of involvement in terrorist offences, the charges against him were later dropped and he was subsequently re-released on licence on 21 August 1997 . In the Court’s opinion these factors do not lend support to the applicant’s argument that there was no effective review from the standpoint of Article 5 § 4 of the lawfulness of his detention following the revocation of his licence. The Court reiterates that the requirements of Article 5 § 4 were satisfied in the applicant’s case by the original trial procedure.

The Court is not persuaded either by the applicant’s assertion that he was not informed promptly or at all of the reasons for his re-detention following the revocation of the life licence. It considers that it must have been clear to the applicant from the terms of the Secretary of State’s letter of 21 November 1996 that the licence had been withdrawn on account of the fact that he was facing terrorist-related charges. In any event, the reasons for the revocation of the licence and subsequent detention were incorporated in the original conviction. The Court further notes that the applicant signed a document at the time of his release on licence on 18 September 1995 acknowledging that he remained liable to recall. For these reasons it is not open to the applicant to complain about the insufficiency of the reasons for his recall and continued detention.

Having regard to the conclusion that the applicant cannot claim to be the victim of detention in contravention of Article 5 of the Convention, the Court must equally conclude that the applicant cannot raise a complaint under Article 5 § 5 of the Convention.

For the above reasons the Court finds that the applicant’s complaints under Article 5 of the Convention are manifestly ill-founded and thus inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

2.         The applicant states with respect to the revocation of his life licence that he was denied a fair procedure in breach of Article 6 of the Convention, which provides as relevant:

“1.  In the determination of ... of any criminal charge ..., everyone is entitled to a fair hearing...”

The Court observes that the revocation of the life licence did not involve the determination of a criminal charge against the applicant. The complaint under this head is therefore inadmissible ratione materiae and must be rejected under Article 35 §§ 3 and 4 of the Convention.

3.         The applicant further complains that the revocation of the life licence and his continued detention violated his right to respect for his family life and home under Article 8 § 1 of the Convention, which provides as relevant:

“Everyone has the right to respect for his ... family life, ... home...”

The Court considers that any inference with the rights invoked by the applicant are the natural consequence of his deprivation of liberty following the revocation of his life licence, which deprivation has been found to be compatible with the requirements of Article 5 of the Convention. The applicant’s complaint is accordingly manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 thereof.

4.         The applicant also complains that he is the victim of unlawful discrimination since life prisoners in the rest of the United Kingdom are accorded greater procedural protection with respect to the revocation of their life licences than is the case with such prisoners in Northern Ireland . The applicant relies on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court observes that in so far as there exists a difference in the treatment of life prisoners released on licence in the two jurisdictions with respect to the rights accompanying their recall to prison, this difference is based on considerations of geographical location and not on personal characteristics of the type referred to in Article 14 of the Convention. Such a difference does not amount to discriminatory treatment within the meaning of that Article. For this reason the applicant’s complaint under this head is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 thereof.

5.         The applicant finally complains that he was denied an effective remedy in respect of the above complaints, in breach of Article 13 of the Convention which states:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 of the Convention cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). Having regard to its conclusions on the applicant’s complaints under Articles 5, 6, 8 and 14 of the Convention, the Court finds that the complaint under this head must also be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and thus inadmissible under Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

             S. Dollé                                                                                                   J.-P.Costa